SCOTUS Update: La Loi, C'est Moi

By James Fallows

I am not enough of a Supreme Court buff to have any confident idea of what the majority will rule on the Obama health care plan.

But confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain, especially after the latest labor-rights ruling. It is worth reading carefully this lead editorial in yesterday's New York Times. In short, the same five conservative Justices who in their pre-appointment phase had inveighed against "judicial activism" and "legislating from the bench," while promising to live the gospel of judicial "humility" if confirmed, went out of their way, in a ruling written by Samuel Alito, to decree new law contrary to what Congress had ordered and other courts had long approved.*

Normally I shy away from apocalyptic readings of the American predicament. We're a big, messy country; we've been through a lot -- perhaps even more than we thought, what with Abraham Lincoln and the vampires. We'll probably muddle through this and be very worried about something else ten years from now. But when you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we'd identify as a kind of long-term coup if we saw it happening anywhere else.**

Liberal democracies like ours depend on rules but also on norms -- on the assumption that you'll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy. The Roberts majority is barreling ahead without regard for the norms, and it is taking the court's legitimacy with it.

Three items for extra reading.

1) On how Democrats in general should react if the Court, as seems likely, announces a plainly partisan ruling about the health care law, see Michael Tomasky's argument.

2) If you want some bitter amusement, look back at Dahlia Lithwick's excellent real-time reports on how Samuel Alito and John Roberts presented themselves, back when they were trying out for their current lifetime roles:

At his hearings, Roberts sounded the notes of "humility" and "modesty" repeatedly. Over and over, he emphasized the need for judicial deference--to precedent, to the other branches of government, and also to his colleagues on the court. He declined to answer dozens more questions than did Alito. But his casting of himself as a modest cog in a vast and complicated machine afforded real comfort even to those of us concerned about his substantive views.

At first blush, Alito's approach appears simply to be a different flavor of judicial modesty: Where Roberts spoke repeatedly of deference to other institutions, Alito persistently defers to the legal process itself. He tells us, over and over again, that he approaches cases with an "open mind." He says he would start analyzing any issue by closely scrutinizing the relevant statute. He insists--time and again--that he hasn't yet fully studied the issue at hand and cannot therefore offer an opinion.

There's a lot more, and all in the same mode that in retrospect was quite plainly 100% cynical.

3) Reflecting the change in norms leading to a change in reality brought by routine abuse of the filibuster, a Congressional reporter tells us that a recent proposal failed in the Senate, because "Sixty votes were needed to pass."

Of course we students of government know that this answer is incomplete. These days, the actual number of votes needed is 60 -- or five.__* Again, read the editorial, but it concerns "opt-out" measures for certain union dues and fees. Previous legislation and court rulings had approved the practice of unions withholding dues unless individual members "opted out." This was part of the larger balance of union and corporate power that has been worked out in legislation and court rulings over the past century. Samuel Alito, for the majority, decreed opt-out an unacceptable part of the balance and said that unions must switch to "opt-in."

** You can try this at home. Pick a country and describe a sequence in which:

First, the presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.

Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.

Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.

Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation -- and appointments, especially to the courts.

And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?

Update Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection."

Update^2 Richard Nixon also observed the "norms" in stepping aside rather than challenging the hair's-breadth 1960 election results, which many of his supporters were sure had been rigged. Also he deferred to the Supreme Court when they ordered him to hand over his secret White House tapes. But that was, notably, a unanimous Court decision, not the one-vote-margin strictly partisan results we've had in recent controversial cases. [More on the struck-out part later.]

Also: from opposite ends of the pedantry spectrum, some people have written to ask what this foreign-language nonsense is doing in the title, and others why it's not capitalized the way "real" French would be. To the first: of course this is derived from the famous L'etat, c'est moi, which you can look up. To the second: this is Atlantic "house style." In our web posts all "significant" words in a title are capitalized, excluding "of" and "and" but including all verbs and any word coming after a colon. Now you know.